Rosario-Gonzalez v. United States of America

Filing 21

ORDER denying as moot 3 Motion for leave to appeal in forma pauperis/affidavit of indigency; Denying as moot 10 Motion for clarification; Adopting Report and Recommendations - re 12 Report and Recommendations. The Complaint (Doc. 1) is DISMISSED without prejudice. The Clerk is directed to close this case. Signed by Judge Carlos E. Mendoza on 10/14/2016. (DJD)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION DANIEL ROSARIO-GONZALEZ, Plaintiff, v. Case No: 5:16-cv-106-Oc-41PRL UNITED STATES OF AMERICA, Defendant. / ORDER THIS CAUSE is before the Court on Plaintiff’s Application to Proceed in District Court Without Prepaying (“Motion to Proceed,” Doc. 3). United States Magistrate Judge Philip R. Lammens submitted a Report and Recommendation (“R&R”), in which he recommends that the Motion to Proceed be denied, the Complaint (Doc. 1) be dismissed without prejudice, and Plaintiff’s Clarification and Request Motion (Doc. 10) be denied as moot. (R&R, Doc. 12, at 5). Plaintiff timely filed an Objection (Doc. 13). After an independent de novo review of the record, the Court agrees entirely with the analysis set forth in the R&R. As an initial matter, Plaintiff does not object to Judge Lammens’ finding that the Complaint fails to provide any factual support for his claims. Plaintiff’s failure to make any factual assertions in support of his claims is sufficient grounds justify dismissal, particularly where Plaintiff has already declined to file an amended pleading when given an opportunity to do so. Furthermore, as Judge Lammens noted, it appears this Court is not the proper venue for Plaintiff’s claims as Plaintiff does not reside in this district and asserts that the alleged tort occurred in Puerto Rico. See 28 U.S.C. § 1402(b). To the extent Plaintiff objects to this finding on the basis Page 1 of 2 that “he is in the process of relocating to Ocala, Florida” on or about June 22, 2016, (Doc. 13 ¶ 4), Plaintiff’s objection is without merit. Pursuant to § 1402, the Court must look at where Plaintiff is presently residing to determine if venue is proper. Plaintiff has filed no notice of change of address with this Court, and this Court notes that as of September 12, 2016, the date of Plaintiff’s last filing, Plaintiff continued to list an address in Puerto Rico. (See Informative Mot., Doc. 19, at 17). Thus, this Court is not the proper venue for Plaintiff’s lawsuit. Therefore, it is ORDERED and ADJUDGED as follows: 1. The Report and Recommendation (Doc. 12) is ADOPTED and CONFIRMED and made a part of this Order. 2. Plaintiff’s Motion to Proceed (Doc. 3) is DENIED. 3. Plaintiff’s Clarification and Request Motion (Doc. 10) is DENIED as moot. 4. The Complaint (Doc. 1) is DISMISSED without prejudice. The Clerk is directed to close this case. DONE and ORDERED in Orlando, Florida on October 14, 2016. Copies furnished to: Unrepresented Party Page 2 of 2

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